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AMENDED AND RESTATED
CONSULTING SERVICES AGREEMENT
THIS AMENDED AND RESTATED CONSULTING SERVICES AGREEMENT is made as of
this 31st day of August, 1997, between BIOSTAR, INC., a Delaware corporation
with principal offices at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000
("BIOSTAR"), and XXXXXX X. XXXXXXX ("CONSULTANT"), with principal offices at
0000 Xxxxx Xxx., Xxx. 0000, Xxxxxxx, XX 00000.
Whereas BIOSTAR and CONSULTANT entered into a Consulting Services
Agreement dated as of May 1, 1997 (the "Prior Agreement"); and
Whereas BIOSTAR and CONSULTANT desire to amend the Prior Agreement as
further set forth herein.
Now, therefore, in consideration of the covenants set forth below
CONSULTANT and BIOSTAR agree as follows:
1. BIOSTAR hereby engages the CONSULTANT to perform and furnish
certain services as described in the attached EXHIBIT A hereto.
2. As full consideration for the services performed, the
CONSULTANT:
(a) Will be paid $1,500.00 per day for each full day of
services rendered pursuant to this Agreement with payment being rendered
monthly.
(b) In addition, the CONSULTANT will be reimbursed for
all out-of-pocket expenses such as travel, lodging, and the like, which are
incurred at the request of and approved by BIOSTAR.
(c) In the event of the Sale of the Company, CONSULTANT
will be paid 0.25% of the net proceeds from the transaction, with a minimum
amount of $50,000.00, assuming he completes the full term of this Agreement or
helped sell BIOSTAR to the acquiring entity. A "Sale of the Company" means one
or a series of related transactions resulting in (i) the
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consummation of a sale, transfer or other disposition of all or substantially
all of the assets of the Company (determined on a consolidated basis) after the
date of this Agreement to any person other than the Company or any of its
direct or indirect subsidiaries, (ii) any transfer of voting power with respect
to the Company's capital stock after the date of this Agreement (whether
effected by agreement among stockholders, irrevocable proxy, voting trust,
issuance or transfer of capital stock, merger, consolidation or other
reorganization or means, including a reorganization under bankruptcy or
insolvency laws) if, as a result of such transfer, the stockholders of the
Company as of the date of this Agreement no longer hold voting power sufficient
to elect a majority of the Board (or such surviving or resulting corporation)
(including, but not limited to, any existing stockholder acquiring over fifty
(50%) of the voting power of the Company), or (iii) the adoption by the Company
of a plan of liquidation or dissolution (other than pursuant to a bankruptcy or
insolvency) after the date of this Agreement.
(d) The Company granted Xx. Xxxxxxx an option to purchase
53,336 shares of Common Stock priced at $0.23 per share, of which 26,668 vested
under the terms of the Prior Agreement. CONSULTANT and BIOSTAR agree to
terminate the option with regard to the remaining unvested shares.
All payments under this Agreement shall be made to Xx. Xxxxxxx, with
mailing address of 0000 Xxxxx Xxx., Xxx. 0000, Xxxxxxx, XX 00000.
3. The parties warrant and represent that they have the right to
enter into this Agreement. The CONSULTANT further warrants and represents that
the terms of this Agreement are not inconsistent with other contractual
obligations, expressed or implied, which he may have.
4. In view of BIOSTAR'S proprietary rights and interests
concerning its facilities and technology, the CONSULTANT agrees that during the
term of any subsequent extension of this Agreement and for a period of five (5)
years thereafter, the CONSULTANT shall hold in confidence any information
concerning BIOSTAR or the field of diagnostic products which is disclosed to
the CONSULTANT by BIOSTAR or that results from services under this Agreement.
Such information includes, but is not limited to, confidential or proprietary
information,
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materials, know-how and other data, both technical and nontechnical. The
CONSULTANT shall not disclose such information to any third party or use such
information for any purpose, except as provided herein, without the prior
written approval by BIOSTAR.
The CONSULTANT shall have no obligations with respect to any portion
of such information which:
(A) is, or later becomes, generally available to the
public by use, publication or the like, through no fault of the CONSULTANT; or
(B) is obtained from a third party who had the legal
right to disclose the same to the CONSULTANT; or
(C) the CONSULTANT already possesses, as evidenced by his
written records, predating receipt thereof from BIOSTAR.
The CONSULTANT further agrees that during the term of this Agreement,
he will not disclose to BIOSTAR any information which in confidential or
proprietary to himself or any third party.
5. The CONSULTANT agrees that any information, including but not
limited to discoveries, inventions, innovations, suggestions, know-how, ideas
and reports made by the CONSULTANT in connection with the services performed by
CONSULTANT under this Agreement shall become the sole property of BIOSTAR and
shall be disclosed to BIOSTAR. The CONSULTANT will treat such new developments
as information which is subject to the confidentiality provisions of paragraph
four (4) herein. BIOSTAR shall have the unrestricted right to use all new
developments under this Agreement.
6. It is understood that no patent right or license is hereby
granted to either party by this Agreement and that the disclosure of
proprietary information shall not result in any obligation to grant either
party any rights in and to the subject matter of the other party.
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7. This Agreement shall be effective through December 31, 1998,
and may be extended upon mutually written agreement of the parties. However,
either party may terminate this Agreement upon thirty (30) days written notice.
Any rights or obligations set forth herein, which are accrued prior to the
termination of this Agreement, shall survive termination of this Agreement.
Payments under paragraph 2A will be paid on a pro rata basis if this Agreement
is terminated prior to December 31, 1998.
8. The relationship created by this Agreement shall be that of
independent contractor without the authority to bind or act as agent for
BIOSTAR or its employees for any purpose.
9. Neither party hereto will use the name of the other party in
publicity or advertising involving this Agreement without the prior written
approval of the other party hereto.
10. This Agreement shall be governed by the laws of the State of
Colorado, U.S.A., and the parties hereby submit to the jurisdiction of the
Colorado courts, both state and federal.
11. No modification to this Agreement shall be effective unless
made in writing and signed by a duly authorized representative of each party.
12. This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings between the parties (whether written or oral)
relating to said subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
set forth below.
BIOSTAR, INC. CONSULTANT
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
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Title: President/Chief Executive Officer Date: 12/18/97
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Date: 11/26/97
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EXHIBIT A
(a) Assist the Company in identifying and evaluating alternatives for
creating shareholder value.
(b) Advise on strategic alternatives and opportunities.
(c) Consult directly with Xxxxxx X. Xxxxx on operations issues as
requested.
(d) Represent BioStar, Inc., when requested, in negotiations with other
companies (buying/selling/product development).
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